United States District Court, W.D. North Carolina, Charlotte Division
JORDAN MOSEMAN, on behalf of himself and all others similarly situated, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION, Defendant.
Philip
J. Gibbons, Jr. STEPHAN ZOURAS, LLP, James B. Zouras Teresa
M. Becvar STEPHAN ZOURAS, LLP COUNSEL FOR PLAINTIFF
Elizabeth R. Gift N.C. Bar No. 44331 Ogletree, Deakins, Nash,
Smoak & Stewart, P.C., A. Craig Cleland Erika L. Leonard*
Admitted Pro Hac Vice Ogletree, Deakins, Nash, Smoak &
Stewart, P.C. COUNSEL FOR DEFENDANT
CONSENT ORDER GOVERNING THE EXCHANGE AND PROTECTION
OF CONFIDENTIAL INFORMATION
David
C. Keesler United States Magistrate Judge.
Proceedings
and Information Governed.
1. This
Order (“Protective Order”) is made under
Fed.R.Civ.P. 26(c) and agreed upon by and between Plaintiff
Jordan Moseman (“Plaintiff”) and U.S. Bank
National Association (“U.S. Bank”), and their
respective counsel. On behalf of himself and those similarly
situated, Plaintiff makes claims about his and the duties of
certain employees which involve the investigation of
potentially suspicious activity for the purpose of U.S.
Bank's deciding whether to file a Suspicious Activity
Report (“SAR”) when required by the Bank Secrecy
Act (“BSA”). U.S. Bank represents, and Plaintiff
does not dispute, that the BSA requires of U.S. Bank certain
reports where they have a high degree of usefulness in
criminal, tax or regulatory investigations or proceedings, or
in the conduct of intelligence or counterintelligence
activities, including analysis, to protect against
international terrorism. As such, there may be criminal,
regulatory, or even national security implications with
respect to publicly disclosing certain information that may
be subject to discovery in this action, and that there is a
real and immediate interest in protecting such information
from public disclosure. Because of the nature of
Plaintiff's claims and U.S. Bank's defenses thereto,
this case requires the review of information the public
disclosure of which may, among other things, provide a road
map for or otherwise facilitate persons to engage in serious
illegal or suspicious activity and evade U.S. Bank's
risk-based controls for detecting potentially suspicious
activity and reporting suspicious activity to the Financial
Crimes Enforcement Network (“FinCEN”), a bureau
of the U.S. Department of the Treasury, as mandated by the
BSA.
2. This
Order governs any document, electronically stored information
(“ESI”), other information, thing, or testimony
furnished by any party to any other party under Rule 34. The
information that may be protected by this Protective Order
includes all factual information disclosed in this action,
including but not limited to: answers to interrogatories;
answers to requests for admission; responses to and
production of documents, ESI, information and things
responsive to requests for production of documents;
deposition transcripts and videotapes; deposition exhibits;
deposition testimony; and other documents, ESI, information
and things produced, given, or filed in this action that are
designated by a party as “Confidential” or
“Highly Confidential” in accordance with the
terms of this Protective Order, as well as any copies,
excerpts, abstracts, analyses, summaries, descriptions, or
other forms of recorded information containing, reflecting,
or disclosing such information.
Non-disclosure
of Certain Information.
3. U.S.
Bank represents, and Plaintiff does not dispute, that the BSA
absolutely prohibits U.S. Bank from disclosing certain
information to anyone except its regulators and law
enforcement, including whether or not it filed any particular
SAR and any information that would reveal the existence of a
SAR (the “BSA Disclosure Prohibition”). 31 U.S.C.
§5318(g), 12 C.F.R. §21.11(k), 31 U.S.C.
1020.320(e), see also 75 Fed. Reg. 75593 (Dec. 3,
2010). Thus, no request for discovery shall be construed to
seek production of any information subject to the BSA
Disclosure Prohibition, and U.S. Bank will not attempt to use
any information subject to the BSA Disclosure Prohibition in
this action or claim that any such information, if it could
be used, could assist it in defending the claims in this
action.
Designation
and Maintenance of Information.
4. For
purposes of this Protective Order, the term
“Confidential Information” means any document,
electronically stored information (“ESI”), other
information, thing, or testimony that is comprised of
medical, personal, personnel (for individuals who are not
parties to this lawsuit) or proprietary information, trade
secrets or commercial information that is not publicly known
and is of technical or commercial advantage to its possessor
or which could be misused if not protected in accordance with
Fed.R.Civ.P. 26(c), or other information required by law or
agreement to be kept confidential. Confidential Information
that is within the scope of this paragraph may be designated
by the producing party as containing confidential information
by placing on each page and each thing a legend substantially
as follows: “CONFIDENTIAL.” If
it is not reasonable or practicable to place such a legend on
every page, such as in the case of certain natively produced
ESI, the producing party may comply with this designation
requirement by conspicuously designating the file as
“CONFIDENTIAL.”Any document,
ESI, other information, thing, or testimony may be designated
as “Confidential Information” whether produced by
U.S. Bank, Plaintiff, any opt-in Plaintiff who has joined
this action as a “party plaintiff” under 29
U.S.C. § 216(b), or any non-party who receives a
subpoena in connection with this action under Rule 45.
5. For
purposes of this Protective Order, the term “Highly
Confidential Information” means any document,
electronically stored information (“ESI”), other
information, thing, or testimony that reveals or concerns
processes, thresholds, procedures, scenarios, decision-making
criteria or other information by which U.S. Bank detects
potentially suspicious activity, investigates that activity,
decides whether it is in fact suspicious, and determines
whether to file a SAR as mandated by 31 U.S.C. §5318, 12
C.F.R. §21.11, and 31 C.F.R. §1020.320. This Highly
Confidential Information may also concern law enforcement
agencies and regulators. Such Highly Confidential Information
could provide a roadmap or other guidance which persons could
use to evade detection and thereby engage in serious criminal
or terrorist activity. Highly Confidential Information that
is within the scope of this paragraph may be designated by
the producing party as containing Highly Confidential
Information by placing on each page and each thing a legend
substantially as follows: “HIGHLY
CONFIDENTIAL.” If it is not reasonable or
practicable to place such a legend on every page, such as in
the case of certain natively produced ESI, the producing
party may comply with this designation requirement by
conspicuously designating the file as “HIGHLY
CONFIDENTIAL.” Any document, ESI, other
information, thing, or testimony may be designated as
“Highly Confidential Information” whether
produced by U.S. Bank, Plaintiff, any opt-in Plaintiff who
has joined this action as a “party plaintiff”
under 29 U.S.C. § 216(b), or any non-party who receives
a subpoena in connection with this action under Rule 45.
6.
Information disclosed at a deposition may be designated as
Confidential or Highly Confidential within the meaning of the
preceding paragraphs by either: (a) indicating on the record
at the deposition that the testimony is Confidential or
Highly Confidential and subject to this Protective Order, or
(b) notifying the other party in writing within ten business
days of receipt of the transcript of the pages and lines
and/or exhibits that contain Confidential or Highly
Confidential Information. Unless the parties otherwise agreed
at the conclusion of the deposition, the transcript and
exhibits will be treated as Highly Confidential Information
until the conclusion of the above ten business day period. If
a party designates deposition testimony or exhibits as
Confidential or Highly Confidential, the designating party is
responsible for notifying the applicable court reporter and
videographer (if any) about such designation, and the
designating party shall bear any costs associated with the
designations.
7. In
the event that Counsel for any party at any time believes
that particular Confidential or Highly Confidential
Information or material should cease to be so designated,
Counsel shall notify the designating party, specifying the
particular designation(s) in dispute and the bases for each
such challenge. Counsel for the challenging and designating
parties shall confer in good faith within ten business days
of such notification, in an effort to resolve the matter by
agreement. If no agreement is reached within ten business
days thereafter, the designating party shall have the burden
of moving and may file a motion that identifies the
challenged Confidential or Highly Confidential material
setting forth in detail the basis for the designation. The
burden of persuasion in any such challenge proceeding shall
be on the designating party. In the event such a motion is
made, any disputed Confidential or Highly Confidential
material shall remain subject to and protected by this Order
until such motion is resolved.
8.
Recognizing the significant burdens on the parties and the
Court that designating information as confidential or highly
confidential may create, each party shall exercise good faith
and reasonable discretion ...